The High Court has rejected Denis O’Brien’s judicial review challenge to the procedures of the Moriarty Tribunal, refusing the declaratory and injunctive relief he sought. Mr Justice Quirke delivered judgment on 21 December 2005.
The challenge arose during the Tribunal’s inquiry into the award of Ireland’s second GSM phone licence. O’Brien, then chairman of Esat Digifone, raised concerns about the Tribunal’s use of economist Peter Bacon’s advice, its decision not to pursue evidence from Michael Andersen through Danish courts, its handling of other witnesses and documents, and an 18-month gap before Tony Boyle was cross-examined.
Quirke J held that the Tribunal could retain Bacon to advise it on technical matters during its private investigation and could call him as an expert witness at public hearings. The judge said that, if Bacon’s evidence were not called, he should be made available for cross-examination on request. The Tribunal had disclosed Bacon’s reports and related material, and O’Brien could make submissions, seek to question Bacon and present evidence in response. The judge found that the late disclosure of Bacon’s 2003 report had not breached fair procedures in the circumstances.
The judge also rejected the argument that Bacon’s involvement meant the Tribunal’s sole member would be biased. He said there was no evidence that the private advice would compromise the respondent’s independence, and noted that any evidence Bacon gave publicly could be tested.
On Andersen, the court reviewed the Tribunal’s efforts to secure his attendance and advice about the Danish process. That process could take years, would not permit cross-examination as understood in Irish courts, and would produce no verbatim transcript. Quirke J found that the decision not to pursue it further was not irrational and had not deprived O’Brien of fair procedures. The court also found no basis to order the Tribunal to obtain evidence from other former A.M.I. personnel or documents from Denmark. During the proceedings, the Tribunal had said it was prepared to seek relevant evidence from those witnesses and documents where reasonably practicable.
Finally, the court found no demonstrated prejudice from the delay before Boyle was cross-examined. Boyle had since been cross-examined, and O’Brien could still offer evidence to clarify or challenge his testimony. The court held the delay reasonable in the circumstances and dismissed the claims for relief.